@fox.com. if you know that word, you're a genius, don't be a windlestraw. i'm bill o'reilly, remember the spin stops here, we're definitely looking out for you. breaking tonight, a new health care bombshell, with the administration forced to admit a huge failing in the system that is supposed to provide insurance for millions of americans, officials tonight taking a dramatic step to try to get insurers the payments they need for coverage. and wait until you hear how they're doing it. welcome to "the kelly file," everybody, this news just broke about an hour before we went on air. obama officials confirming there is still no system yet for moving the money from the obama care customers to the insurance companies. the subsidies that the government promised the insurance companies it would give them in order to give you know, coverage to these millions

of americans, great, a promise. but unfortunately there was no way to cut the check. that part of it that provides for payment, not built yet. and for days, many journalists have been demanding answers of this administration, wanting to know, you're touting this improved healthcare.gov. how does the system work without a payment mechanism? there is no cash register. what would make the insurance companies actually provide coverage when they haven't been paid? we reported this to you last night. without a way to get payment to those companies how are people going to actually get coverage? so now tonight, at 8:00 p.m., get a report with an answer from reuters news. the administration is going to let the insurance companies estimate what they should get. and then the feds are going to cut them a big check and figure out later what the real amounts are supposed to be.

that is your money, that is your money. they're going to do a back in the envelope, i think it is this. and then the feds are going to pay it. think about that for a moment. think about that. we're talking about one sixth of the u.s. economy, and this is the system they have now settled on, privately, late in the evening. and then consider what the president said just this afternoon. >> the bottom line is, this law is working and will work into the future. >> senior fellow at the manhattan institute, national review columnist and how medicaid fails the poor. this is unbelievable. i mean, this is from the reuters report an hour ago. health plans will estimate how much they're owed. and then they will submit that estimate to the government. once the system is built, the government and insurers can reconcile the payments made with the planned data to true up the

payments. oh, joy, so it is basically an honor system if i'm reading this correctly. >> well, the basic thing to understand is it is not a bailout of the insurers, but a bailout of the president. because two weeks ago we heard from one of the top operators of the system, is that it hadn't even been built yet. >> 30 to 40% of healthcare.gov has not been built yet, we said exactly what part of it is that? and they revealed it is the payment mechanism. and how are they going to get paid? this is the solution? we're going to trust the insurance companies to say i think you owe me x million in subsidies for the policies submitted for coverage, is that how it is going to work yet? is that the alternative? >> that is the alternative, basically, because if they don't get paid, they will heritage,

and the barack obama -- hemorrhage, and the -- >> when the person is successfully enrolled through healthcare.gov and there has been a payment mechanism through the government, is this the portion of the website that calculates how much of a subsidy they're going to get and then tells the feds, okay, cut that amount of a check to aetna? >> it is the simple system of when the individual signs up and he signs it for a particular plan he has to actually pay the insurer for whatever the subsidies don't cover. and the insurance can't get paid for that because the system has not been built. so you are not officially enrolled if you haven't paid the insurer. technically enrollment doesn't happen unless the insurer gets a check from you. so you may go to the doctor and think you signed up for healthcare.gov, and the doctor says you're not insured.

i don't have a policy for you -- >> let me ask you, because i think you might be confusing two issues. you're the expert, not me, but there are two issues at least tonight with this system. number one is reports today are everywhere that up to 30% of the people who have enrolled on healthcare.gov only think they have enrolled. and that in fact, the enrollment has failed and that when they go to their doctor on january first to get coverage they find out the hard way that their attempted enrollment failed and they don't actually have coverage. but problem number two is, 30% of their enrollment has failed, and this announcement tonight relates to issue number two. they're trying to get a way to improve the payment situation and according to this reuters report, they are meaning to cover the subsidies and premiums that the insurance companies are waiting for. >> so as you say there is two issues. in the private sector, in the

private health insurance market the way it works if you're not officially enrolled in a health plan until you send the check to the insurer and the insurer receives payment, then you are enrolled. so what they call enrollment is not really enrolled. you can sign up for the plan, which is two thirds of the plan, and still not have paid the check to be officially enrolled. so that is the problem, the payment is what creates the enrollment. signing up for a plan but not paying, is not being enrolled. >> so the solution, because they can't pay, the feds, uncle sam and the insurance companies are going to sit down together, the insurance companies are going to say trust me, this is what you need to give me. and for this amount, we're going as to cover the following people and later we'll true it up. with respect to the health insurance companies, have you ever dealt with the health insurance companies? i mean, do we have reason to believe we can just trust their word? and are they going to give us a

big refund? >> in this case, we have more reason to trust the insurance companies, because if they're dishonest, everybody is going to get mad at them. they're already so politically under the gun, they just want to keep their heads down and not get shot. >> but do you have any idea of the waste and fraud in this system, now, rather than making sure the p's are crossed and i's are dotted, we're going to tell them this is how much of the american taxpayer's money we want and we'll start to cut checks. >> the real area where the fraud, waste and abuse is, is the subsidies, because there was an auditor today that said they have no incentive to check on what the subsidies are. that is going to get people saying give me a bigger subsidy and bigger check. >> my head is swimming with the amount of issues we just ticked

off just in this one segment, thank you for joining us. before in news broke tonight, president obama attempted to set the reset button on his health care law, we just played you a sample of it. the law works, really? how does it work exactly if there is no mechanism for payment for coverage? you heard him go out there today and defend the law in familiar ways, but he did it at a time when his approval rating has hit a record low according to the poll. he is in the 30s now. in the 30s. still, the president sounded defiant today. >> my main message today, we're not going back. you got good ideas, bring them to me, let's go. but we're not repealing it as long as i'm president. >> chris stirewalt, in the 30s

now? >> and we're not repealing it as long as he is president. but he is down in popularity, every day brings a new problem, a new disaster, a new fresh horror awaits, and the president says i know, i know, i know, but we're going to drag forward with this, put it in place, whatever we have to do. and it is going to be the law of the land at least until 2017. that sounded more to me like a funeral for the hope and change. he was even kind of dressed like an undertaker. it was not much of a campaign rally. >> you know, you can see the picture of barack obama and joe biden standing together, if joe biden becomes the democratic nominee, and says this is a big [ bleep ]ing deal, good luck with this. >> and he tried to hit the reset button on his failed rollout of

obama care. at the same time we get these reports that not only now is there not a payment mechanism in tonight, we knew there was no payment mechanism, but tonight we get the word that okay, their big fix which they refused to reveal for days and weeks, is they're just going to start cutting checks without that system being set up. we're going to trust the administration and the health insurance companies not to screw us. seriously. it is 9 i can say that. and people who made it through and signed up will find out in january when they go to have their operation that they have no health insurance. how is some reset button going to solve that problem? >> well, it ain't. and i think right now they're going to gas up some b-52s and

start to drop money on the states, on the insurance companies and hope that some money gets on the ground so that all of these millions of americans who had their policies cancelled can actually give them insurance. just please, god, give them insurance, we'll give you whatever. the news that broke yesterday evening was the fact that they have laid the regulatory ground work for the bailout. the law provides a bailout loan to go to the insurance industry. the new york times found entered into the federal register, this is how we're going to provide the future bailout to the insurance companies that we have regulated to the edge of oblivion, this is not cool. >> the president made the promise that he didn't keep, about keeping your plan. then the decision, he offered a fix, the fix was, i'll try to make my promise come true if the insurance companies will go along with you. well, the insurance companies are saying we're not going to let those people keep their

plans. the whole system depends on people getting kicked off their plans, and we're going to be the beneficiaries of this. that is the only way we agreed to insure these sicker, older people for these costs. now that it doesn't work and the president said you can keep your plan. it is starting to implode. the solution is, we'll bail out the insurance companies, we'll give them money to make it worth their while, and it turns out that, too, was baked into the law before it was able to pass. >> and the carpet bombing connecticut with sacks of cash is just the beginning, because as was said before, the reality of this is with all of these navigate navigators who are getting incentives to get as many people signed up for the law and as much subsidy as possible, can you imagine on the other side of this how much this is all going to cost? the numbers become rather

staggering. >> chris, good to see you. >> you, too. >> well, wait until you see what brit hume has to say about all of this. he joins us next. and the very word from people who put their lives on the line to defend our freedom. the pentagon's plans for our military families next. and explosive new testimony on capitol hill on whether the president is violating the constitution. and one man's suggestion, we could be paving the road to revolution? wow. as james madison warned centuries ago in federalist number 47, the accumulation of all powers, legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny

you know, ronny... folks who save hundreds of dollars by switching to geico sure are happy. and how happy are they jimmy? i'd say happier than a bodybuilder directing traffic. he does look happy. get happy. get geico. fifteen minutes could save you fifteen percent or more on car insurance.

did you try restarting it? no, not that. i was thinng about getting a tablet aa gift... verizon has tablets. accessing brn information... yes, ty have a lot to choose from. did you real just... and now you can get $100 off any tablet. thanks, wayne. save like never before on any tablet at verizon now. get $100 off any tablet. plus trade in your old tablet for up to $150 or more. that's powerful. verizon. can you move your beverage away from the keyboard? it's making anxious. sure thing. every day we're working to and to keep our commitments. and we've made a big commitment to america. bp supports nearly 250,000 jobs here. through all of our energy operations, we invest more in the u.s. than any other place in the world. in fact, we've invested over $55 billion here in the last five years - making bp america's largest energy investor. our commitment has never been stronger.

i want to thank all of you for your service and sacrifice, and unshakeable commitment to our country. you have worn the uniform with honor, you performed heroically in some of the most dangerous places on earth. you have done everything that has been asked of you and more. and you have earned a special place in our nation's history. >> that was president obama in april of 2012, praising our troops for their selfless sacrifice on the battlefield. but in the past few weeks, we've

seen a growing report on the pentagon's need to cut budgets. and suggestions that our military families should pay a significant part of that price. combat war veteran, pete, good to see you. >> thank you. >> there are at least two propos proposals now on the table to try to find a trillion dollars in cuts. and one is to cut the pay of our military, and one is to basically cut the place where they go and they buy things like food and supplies. >> the commissaries. >> you don't need that, and so let's get rid of that. and the reaction from military families is okay, got to make some cuts, get that. why do we always have to go first? >> no, and that is a legitimate reaction. two important caveats, and megyn, you know this, we're $17 trillion in debt. we don't have the same resources to fund dod as we did in wartime so we'll have to make tough

decisions. at the same time, there is not enough in the pentagon to be cut. it is a $6 million budget. so we're not going to balance america's fiscal woes on the backs of defense, that is why it is so frustrating to see things like benefits and military compensation, being the first things discussed when we talk about reducing the pentagon budget. there is a lot of waste and fat to be cut at the dod, let's be smart and serious on how to attack it. but let's be serious, the private on post doesn't have a lobbyist in washington protecting him. but the defense contractors and other systems do. so i don't think it is smart to start with the pay in compensation, even though everything in some way will have to be on the table. >> and there are a lot of republicans who want to see cuts in the sequester and they support that. and that will include some cuts in the military, as well. but the question is whether you have to start with the actual

service personnel and their pay. now, i know their pay has gone up more than it has in the average private sector for certain workers in the past few years. but it is not that high, pete. the average pay is $45,000 a year for a single person. and married with two children, $49,000. so they want to cut that. and they want to cut commissaries. but the question i have for you is how does that play when you see stories like our lead story where you have the feds just doling out checks to the insurance companies, we're going to trust them. >> throwing bailout. >> that is going to work out okay. >> and no one is getting rich in the military. that is an e 4 pay, privates make even less than that. so when you see the government wasting tons of money elsewhere, yet they now want to pinch pennies on the war fighters, and benefits. hey, i have sacrificed before and can do it again.

i understand these are austere times, but my goodness, it is so frustrating to watch the government waste so much but then to realize we're not only cutting the fat in government. but with sequestration, we're cutting into the muscle. this is not just about benefits. this is about training and maintenance and operations and all the things our military units need to do in order to be the best fighting force in the world. >> and lois lerner is going to retire on the taxpayer's dime. and you see the agencies they go to, with the line dancing and so on, and then it is, well, let's cut the military, thank you for joining us. thank you. and now, getting money to insurance companies in order to get coverage to millions of americans, is this really the way we want to go? the honor system. plus, for the first time,

congress speaking to two cia contractor's who were on the ground in benghazi on the 94 americans were murdered. the new hearing's from the closed door session. ♪

mm. mm-hmm. [ enne revs ] ♪ [ male announcer ] oh what fun it is to ride. get the mercedes-benz your wish list at the winter event going on now -- but hurry, the offers end december 31st. [ sant] ho, ho, ho! [ male announcer ] lease the 2014 glk350 f $419 a month at your local mercedes-benz dealer. kand i don't have time foris morunreliable companies.b0 angie's list definitely saves me time and money. for over 18 years we've helped people take care of the things that matter most. join today. ♪ ♪

[ male announcer ] everyone deserves the gift of all day pain relief. this season, discover aleve. all day pain relief with just two pills.

. it's "the kelly file" with megyn kelly. new developments into the investigation in the benghazi terror attack, congress speaking for the first time with two cia contractors who were sent to benghazi as the terrorists were assaulting our consulate on september 11th, 2012. the attack killed four americans, including our ambassador, the republican congressman was in the hearing today. what have we learned? >> well, today was outstanding

testimony. and essentially what they were able to prove today, they basically backed up the other contractors who were on the ground in the two previous hearings. so this is an ongoing investigation. and i think they gave us a lot of good leads today and i feel very comfortable moving forward with where we are at today. >> all right, the reports we have is that it is now absolutely clear that this administration's initial claims that this was about a video and it was a spontaneous protest was completely belied about the facts on the ground, and was known to the administration, was that true? >> that was a completely, we always knew that. but i think important testimony came out today. so these gentlemen found out about this right around dusk. and they new tknew the ambassads missing, and they were in tripoli. so you have this time frame, until 5:00 in the morning, from

9:00 at night. and from that point, the attack was still ongoing. they arrived at the time the mortars hit and killed two additional americans who were not killed at the embassy compound earlier. so this is -- there is just nothing there the administration is standing on anymore, as to what were they doing? how come nobody came to help? i think that was clear, nobody knew even at 5:30 that the attack was going to be over. >> your point is they didn't dispatch any help, even when it was unclear whether the attack had ended or not. what would be the delay when they didn't know it was over? they claim they thought it was over. and your point is, they didn't know it was over. and the cia guys are telling you they didn't know it was over, so why wouldn't they dispatched help? >> yeah, what if the attack had went on for another 24 hours? would they have eventually sent help then? there is no accountability in this process. and nobody knows what the

president knew and when he knew it. >> that is what i wanted to shed light on, do you know any better about what the president was doing on the night of the attack and the night in question. >> no, remember these guys were the guys on the ground that saved everybody's life. and they radioed people upstairs, they assumed they knew, but they're just trying to save people's lives. >> congressman, good to see you. and two critical guests will be here next on our top stories. we'll hear from an insurance rep that the feds have a new work-around for providing the payments that are supposed to help insure millions. by the way, i just love it. people are following me on twitter, this is from bill. he writes, i think i'll just tell the irs how much refunds they will owe me come april 15th, and then we'll just true it up later. will they accept that from us? and then brit hume coming up.

tough love from this girl, she cannot sell her hand-picked mistle toe. ♪ ♪ ♪ ♪ ♪ honestly, i wanted a phone with a better camera. my boyfriend has a lot of can't-miss moments. i checked out the windows phones and saw the lumia 10 has 41 megapixels. so i can zoom way in even after i take the picture. and i can adjust the shot before i take it so i get it exactly how i want. so, i went with a windows phone.

maybe i just see things other people don't. ♪ honestly ♪ i wanna see you be brave ♪

to help secure retirements and protect financial futures. to help communities recover and rebuild. for companies going from garage to global. on the ground, in the air, even into space. we repaid every dollar america lent us. and gave america back a profit. we're here to keep our promises. to help you realize a better tomorrow. from the families of aig, happy holidays.

. back now to the big story breaking tonight. the administration is talking about the new work-around, confirming that the systems that are supposed to provide some of the federal subsidies, you know, this is how they get you to enroll, like it is not as high as it looks because the feds will subsidize your premiums. well, that has not been built. so really, the feds are not going to subsidize your premiums unless they figure out a way to cut the check and pay the insurance companies. well, now we know what that is.

they will let the insurance companies estimate what they should get from the feds, and then the federal government will cut them a big check of your money. and then they will sit down and figure out later what the real amounts are supposed to be. i'm not kidding. that is actually the system they have designed tonight. dan skyler is in charge of the utah health exchange, good of you to be here. now, we're talking about the subsidies that the insurance companies are going to pay -- i'm sorry, we're talking now about the subsidies that the federal government is going to pay the insurance companies, right? >> that is correct. >> okay. and so now the new system is going to be insurance companies say well, i've had x number of people enroll with me. i'm aetna, and i estimate you, uncle sam, owe me $7 million. and then, kathleen sebelius is going to write out a check and say here is the $7 million, please do insure those people. and then they will chat later

about whether or not $7 million was too much or too little. and then they will true it up. is that essentially what they have announced tonight? >> yes, it is definitely an interesting work-around, for sure. >> i mean, with all due respect to the insurance companies should we really be working on an honor system here? i mean, is it smart to be cutting checks of the federal taxpayer's money, not knowing for sure whether that is exactly the amount that is owed? >> well, that is a good question. and i think it really opens up pandora's box for error. ultimately, like the federal government indicated, the federal government and the carriers would true up on the back end of that and promise that the subsidy was paid. so if there was an over-pay, they would pay it back to the federal government, in theory. >> in theory they would pay the federal taxpayer back. but you know what kind of fights are going to emerge about

whether the payment was right or wrong. and the insurance companies would argue it was not an over-payment. this has disaster written all over it. i say it as a former litigator. people just don't cut checks back on an over payment that was given to them. >> it is definitely a burden for the carriers. this is something they did not anticipate they would have to do. and so for the federal government to have the insurance carriers now really do this complicated work-around is really a burden on the carriers. >> and have the carriers do what the website cannot. and let me ask you this, there are reports out today that perhaps as high as 30% of the folks who have enrolled or think they have on healthcare.gov, this is a separate problem, have not in fact enrolled. that there were problems with the forms. and they may be sitting at home saying i'm good, i got through healthcare.gov and then i got my insurance, thank goodness. and then they will go through a

procedure in january to find out the hard way they're not insured at all? >> yes, that is definitely a concern, prior to the fixes that cms issued over the weekend to fix the platform. there was a lot of concern about missing enrollment files that had errors. and to your point, come january 1st of 2014, there could be consumers that go to the doctor or the hospital thinking they're covered and they're not. >> i mean, have you ever seen anything like this, dan? this is not -- most of us don't live our lives mired in insurance. >> no, true, this is a very, very complex technological problem. this is one of the most complex i.t. problems ever initiated by the federal government. and there are complex problems that they have to initiatie wit the federal government, with the carrier, with the states.

and one of the errors we're talking about is not having insurance when they think they actually applied and have coverage. >> and that doesn't even count the millions who don't have insurance and know it because they can't get on the website. dan, thanks, we'll talk to you again. >> thank you, megyn. >> joining me now, brit hume, our fox news senior political analyst, what a mess. >> well, this is the website and the system that was not finished. so they're trying to find a way to work around it. it seems to me it might resolve the problem of the insurance companies not being paid the correct amount of subsidy money. i don't think it solves the problem, though, that you talked about earlier, megyn, or just now talked about people thinking they were signed up, because of the problems with the back of this thing. the improper data or the wrong data and these people are not signed up. >> it is a separate issue. >> well, it is, and you think about the reaction we have had to people who found out they

lost their insurance. it was pretty strong. well, think about the reaction to that problem. it was likely to be equally as strong. we don't know how many people it affects. but one estimate today is a third. that is a big number. so this illustrates one of the political headaches here, megyn that makes this such a nightmare, which is a lot of the problems are still out there waiting to happen. >> looming. but the administration, the president came out today and said the law is working. it is not going to be repealed while he is president. and he, through ofa, has come out with this new marketing campaign that they're encouraging people to what is it? shop, enroll? buy. and we've got the full screen. we'll put it up in a minute. but the problem is apply, shop, buy. well, if you try to apply, we're still getting error messages in many cases. you shop, i guess in order to comparative shop you have to enter all of your personal information. and that has raised security

issues. buy, it is not really possible, brit, let's be honest, it is not possible. >> and i think if you're able to window shop in the state exchanges or federal exchanges you're able to do that. on the screen, that is there. our correspondent peter ducey got a shock when he was trying to shop. but this -- megyn, i think it illustrates the political problem with this. the president is trying to go to the campaign style effort to sell this. this problem, i think, is not really susceptible to that kind of a solution. campaigns and the issues that are argued in campaigns tend to be about things that people understand as a back matter of principle or in the abstract, we're talking about issues that

affects everybody in one way or another. not just an issue, but directly. when you have 5 million people who have lost their insurance so far with millions more to come, not to mention the number of people who tried unsuccessfully to use this clunky website, you're talking about people themselves feeling this directly. and that is the kind of problem that i don't think it is easy to campaign your way out of. >> you know, brit, they maintain if they can just get this website working people are going to get on there and see great dial deals and start to enroll. the young people will flock to it. then the system works, that turns things around, even politically for the democrats who supported this law. >> well, the problem with that is, it is certainly true that some people and perhaps a great many people will eventually be able to log onto this website and be able to acquire an insurance policy either with the help of a subsidy or that it is sold at a reasonable rate that

they're satisfied with and they get on with their lives. those are the people who the administration is counting on. but remember this about politics. it is almost all the case that negative emotions, that people who are dissatisfied and angry are motivated to get out and be politically activated. people who are content have other issues on their mind, as well. and it will help if they're satisfied and content with their health care and insurance, but they're not going to be as motivated as the people who are angry, and we know there are going to be millions of them. >> and we're talking about millions every day, people who think they're covered, add those who were covered and ticked off because they have no coverage. >> not to mention the unknown problem lying out there waiting to jump on us, that has to do with the security of the website. >> yeah. >> i mean, all the experts say that this thing has not been properly tested.

that people will enter their personal data on air at their own risk. that is yet another thing. i don't think that you know, the old techniques that have served president obama so well, you know, getting his supporters whipped up and getting them out there, thinking up slogans, that won't work so well this time. >> is it mostly a play on eat, pray, shop -- all right, brit, good to see you. >> you bet, megyn. and stunning testimony on capitol hill over whether the president is violating the constitution. let's see what top scholars on both sides of the aisle have to say new t say. >> the problem with what the president is doing, he is not only posing a danger to the constitution, he is working against what the constitution was trying to avoid.

i don't just make things for a living i take pride in them. so when my moderate to severe chronic plaque psoriasis was also on display, i'd had it. i finally had a serious talk with my dermatologist. this time, he prescribed humiradalimumab. humira helps to clear the surface of my skin by actually working inside my body. in clinical ials, most adults with moderate to severe plaque psoriasis saw 75% skin clearce. and the majority of people were clear or almost clear in just 4 months. humira can lower your ability to including tuberculosis. serious, somimes fatal events, such as infections, lymphoma, or other types of cancer have happened.

blood, livernd nervous system problems, serious allergic reactions, and new or worsening heart failure have occurred. before starting humira, your door should test you for tb. ask your doctor if you live in or have been to a region where certain fungal infections are common. tell your doctor if you have had tb, hepatitis b, are prone to infections, or have symptoms such as fever, fatigue, cough, or sores. you should not start humira if you have any kind of infection. make the most of every moment. ask your dermatologist about humira, today. clearer skin is possible.

became big business overnight? ♪ like, really big... then expanded? ♪ or their new product tanked? ♪ or not? what if they embrace new technology instead? ♪ imagine a company's future with the future of trading. company profile. a research tool on thinkorswim. from td ameritrade.

the government does not respect the constraints that the constitution places on the government. abraham lincoln talks about our revolutionary right to over throw it. >> that was whether or not president obama was holding up his constitutional duty to faithfully execute the nation's laws and what the consequences are if he is not. and the testimony got fierce, at times. >> i agree entirely that the president cannot simply refuse to enforce a law for policy

reasons. >> the center of gravity is shifting. and that makes it unstable. and within that system you have the rise of an uber-presidency. there could be no greater danger for individual liberty. >> if the people come to believe the government is no longer constrained by the laws, they will conclude that neither are they. >> as james madison warned, the accumulation of all powers, legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny. >> joining me now, republican congressman bob goodlatte, the chairman there you just saw in the meeting there today. mr. chairman, that is rather extraordinary to see folks from all stripes, all ideological stripes, including the very left leaning lawyer talking about an uber president, and how there is no greater danger to

liberty. what did we learn today? >> well, it is very clear the public's attention to this problem is growing. and in response to the professor, who actually supports obama care, and supports other policies big time, says the president doesn't have the authority to re-write that law. and even when congress says you know, we should extend the employer mandate he ignores that, and threatens to veto it. and simply does it himself. it is a serious problem, people are waking up to it and that is a good thing. >> but the question is, is it an abdication of duty? the extension he is granting under obama care, just issuing, or is this within his discretion? because there is case law that these administrative-type things, postponement of tax collection, which he could say this is, that that is all okay to do administratively with the stroke of a pen?

>> well, it is a matter of degree. there is no question there is a certain amount of discretion, the constitution requires that the president take care to faithfully execute the laws, that doesn't mean completely execute, but faithfully execute means to follow the congressional intent, and when the congressional intent is not re flected in how he expects the law to work out he doesn't have the authority to change it. he needs to come back to congress, why? because there is a great divide in congress over the obama care and he needs to negotiate. that is what the legislative branch is for, though, to make those hard negotiations and the lawmakers have the authority to pass the laws. >> there is a reason we have divided government. what is the difference between what president obama is doing now with all the executive orders and declarations and president bush and the signing orders that were so

controversial? >> well, again, there are certainly circumstances when previous presidents have exceeded their authority under the law. and it is the responsibility of congress, in not a partisan way, but a bipartisan way to put a check on that. and the hearings we heard today are a part of that. >> is there something you can do about it? >> it is about sun light, about cutting off funds. it is about lawsuits, changing the law so that members of congress and the congress itself can have standing to challenge abuse of authority in the courts. there are a number of steps that the congress can and should take. but it only works well if the congress in both parties recognize that this is a challenge to one of our great principles of our democracy, separation of powers. and they have to join together in a bipartisan way in order to be effective. and the american people need to speak out about it, too. >> mr. chairman, thank you for joining us. >> thank you, megyn. coming up, holiday humbug,

the 11-year-old who was told she couldn't sell mistletoe. tonight, we have more on that. and i think the president has decided congress can't challenge me, he will spend money if he decides to. he will tax if he decides to and write regulations if he decides to. and he will decide the constitution if he decides to. we're down to that. >> there is no appetite for that. the american people have to rise up. bp supports nearly 250,000 jobs here. through all of our energy operations, we invest more in the u.s. than any other place in the world. in fact, we've invested over $55 billion here in the last five years - making bp america's largest energy investor. our commitment has never been stronger.

so when coverage really counts, count on nationwide insurance. because what's precious to you is precious to us. ♪ love, love is strange just another way we put members first. because we don't have shareholders. join the nation. ♪ baby... ♪ nationwide is on your side ♪ it's time for mistletoe and holly. well, new developments tonight in the story of the 11-year-old girl told she cannot sell hand-picked mistletoe at a portland, oregon park. trace gallagher at the west

coast news with details. >> reporter: you know, megyn, madison just got her braces on yesterday. and a lot of kids are not thrilled. but she is, she also knew that it was a struggle for her parents to pay for them. so she went to her uncle's farm, cut down the mistletoe and tied it with a ribbon. she went to an area where musicians play for tips and other people just sit there and beg. she set up between a drummer and a group raising money to buy marijuana, complete with a sign that says got pot? that is when the security guard came up to her and told her she had to leave because selling there is illegal. here is madison. >> we asked him about the people next to us begging to money. and they said that that is okay for them to beg. >> turns out begging, by the way, megyn, is free speech,

selling without a permit, that is not allowed in that area. >> oh, god, my head is going to explode. it doesn't sound like she is going to give up, our little madison. >> no, in fact, she is inspired now. there is a radio station in town that invited her out to the drake concert tonight. and she is selling her mistletoe there and she has got a whole lot of support. in fact, she is so inspired she plans to go back to the portland outdoor market next week and give away the mistletoe. she is encouraging people to you know, kiss, she is calling it the great kiss-off. and she is also going to spread her new message, which is if you want it you got to work for it. here she is again. >> it is not about mistletoe. it is not about me getting kicked off the park. but what it is about is people that are being able to beg but i can't raise money, work hard, have a good work ethic, but they

can beg. >> out of the mouths of babes, you got to work for it if you want it. >> i need to know her, this can't be the end of my relationship with her, she is hilarious, look at her, she is so mature. all right, thank you, trace. follow me at megyn kelly, we'll be right back. that could be a question of blood flow. cialis tadalafil for daily use helps you be ready anytime the moment's right. you can be more confident in your ability to be ready. and the same cialis is the only daily ed tablet approved to treat ed and symptoms obph, like needing to go frequently or urgently. tell your doctor about all your medical conditions and medications, and ask your heart is healthy enough for sexual activity. do not take cialis if you take nitrates for chest pain, as this may cause an unsafe drop in blood pressure. do not drink alcohol in excess with cialis. side effects may include headache, upset stomach,

delayed backache or muscle ache. to avoid long-term injury, seek immediate medical help for an erection lasting more than 4 hours. if you have any sudden decrease or loss in hearing or vision, or iyou have any allergic reactions such as rash, hives, swelling of the lips, tongue or throat, or difficulty breathing or swallowing, stop taking cialis and get medical help right away. ask your doctor about cialis for daily use and a 30-tablet free trial. what do you see here? angels? you know, someing like that. reality check, not all 4g lte coverage maps look alike. i see footprints in the snow. where?! it looks like a holly leaf... a gingerbreaman? (nick) whau see here the ed states-- clear cut! check the map. verizon's superfast 4g lte is the most rele, and in me places than any other 4g network. verizon is definitely winnin that powerful. verizon. if every u.s. home replaced one light bulb with a compact fluorescent bulb, the energy saved could light how many homes?

1 million? 2 million? 3 million? the answer is... 3 million homes. by 2030, investments in energefficiency could help americans save $300 billion each year. take the energy quiz. energy lis here.

yep. got all the cozies. [ grandma ] with n fedex one rate, i could ll a box and ship it r one flat rate. so i kn untilt was full. you'd be crazy not to. is tt nana? [ male announcer ] fedex one rate. simple, flat rate shipping with the reliability of fedex.

well, our twitter is just lighting up with that reuters breaking news. we're still taking your thoughts on it. follow me @megynkelly, let us know what you think. >> you got to tell your friends, you got to tell your family. with his legacy on the line, the president launches a last-ditch propaganda effort to re-sell obama care to you, the american public. >> more problems may pop up as they always do when you launch something new. >> the president's health care plan continues to wreak havoc on the american families snow tief >> the administration continues to hide the problems. >> and another problem, stocking up on liquor, guess what? using your money on your